a. “Authorized User” means the employees, providers, consultants, agents, subcontractors, and licensed healthcare professionals of Customer that Customer authorizes to access the Software on its behalf.
b. “Customer Data” means (a) all data and information Customer submits or transmits to HWS, excluding any PHI (as defined below) necessary for the Services; and (b) data, records, and information HWS generates that relates directly to the Services for Customer under this Agreement, exclusive of information or documentation that HWS generates for use in HWS’s business generally or for use with multiple customers and exclusive of De-Identified Data as defined below.
c. “Customer Support” means the customer support provided by HWS to assist customers with troubleshooting and questions regarding the use of the technology provided under this Agreement.
d. “De-identified Data” means personally identifiable information (PII) that has been stripped of certain identifiable elements in accordance with applicable law to render the individual’s data de-identified. Please note that the Parties address de-identified PHI in the Business Associate Agreement (“BAA”).
e. “HWS Data” means: (a) all data, software (in any form), and information HWS submits or transmits to Customer regarding HWS; (b) all data, records, and information generated in HWS’s business or operations, including any information relating to HWS’s subcontractors and/or affiliates; (c) all HWS Intellectual Property (defined below), together with all derivative works of the HWS Intellectual Property; (d) data, records or information occurring in any form, including written, graphic, electronic, visual or fixed in any tangible medium of expression and whether developed, generated, stored, possessed or used by HWS, Customer, or a third party if related to the items described in (a) through (c) above; and (e) any provider data generated by the Software (including but not limited to patient usage and diagnostic. HWS Data does not include any data or information that relates exclusively to Customer or Customer’s business, operations, or activities.
f. “Intellectual Property Rights” means any patent, invention, discovery, know-how, moral, technology, software, copyright, authorship, trade secret, trademark, trade dress, service mark, confidentiality, proprietary, privacy, intellectual property, or similar rights (including rights in applications, registrations, filings, and renewals) that are now or hereafter protected or legally enforceable under state and/or Federal common laws or statutory laws or laws of foreign jurisdictions.
g. “Order Form” means the HWS Order Form provided to Customer for purposes of ordering HWS Software and Services.
i. “Protected Health Information” or “PHI” shall have the meaning ascribed to such term in 45 C.F.R. 160.103.
j. “Software” means the Patient App, the Provider-Facing Dashboard, all of the capabilities and functionalities associated with the Patient App and Provider-Facing Dashboard including (i) proprietary cloud-based technology platforms, (ii) the Patient App and related software apps, analytics modules and/or portals, and Authorized User’s documentation, and (iii) maintenance hosting services, and/or ongoing user technical support services provided by HWS.
a. Provider-Facing Dashboard. The Provider-Facing Dashboard (“Dashboard”) is a web-based software platform that allows healthcare providers to view, track, and analyze their patients’ health data as collected and
transmitted via the patient companion platform. The Dashboard also allows healthcare providers to track the time they spend on certain monitoring activities such as checking in with a patient and analyzing collected data.
b. Patient Mobile Application. The Patient Mobile Application (“Patient App”) is a web-based software application. The Patient App is intended to provide a convenient program for patients and/or their caregivers, applicable, to compile, access, and share medical records in one convenient platform. The Patient App is not intended for continuous patient monitoring or in such a way that would allow immediate clinical action or healthcare decision-making.
c. Care Mobile Application. The Care Mobile Application (“Care App”) is a web-based software application. The Care App is intended to provide a convenient program for care managers and practitioners, as applicable, to compile, access, and share medical records in one convenient platform. The Care App is not intended for continuous patient monitoring or in such a way that would allow immediate clinical action or healthcare decision-making.
HWS agrees to provide the associated services indicated on the Order Form (“Services”). By selecting a particular service, Customer agrees to the relevant terms associated with that service set forth in the Services List
and Additional Terms attached as Exhibit A. The Services List and Additional Terms attachment is incorporated into and made a part of this Agreement.
a. Software Access. Subject to Customer’s compliance with this Agreement, HWS will provide access to the Software to Customer and its Authorized Users. Customer and its Authorized Users may use the Software (a) to upload and/or transmit Customer Data by and through the Software; and (b) to access and use reports generated from time to time by HWS. Use Restrictions. Customer and its Authorized Users shall not: (i) decompile, reverse engineer or modify the Software or underlying source code, or otherwise attempt to obtain the source code for the Software; (ii) sublicense or allow any person other than Customer, its Authorized Users and Participating Patients to use the Software; (iii) use the name, trademark, trade name, trade dress, designs and logos of HWS (“HWS Marks”) without HWS’s prior written consent; (iv) use the Software or underlying source code in a manner that interferes with the use of the Software by HWS or its customers; or (v) make any claim of ownership or license to the HWS Marks or the Software in any way. A violation of this Section 4(b) shall be deemed to be a material breach of this Agreement and, in such event, HWS shall have the right, in addition to retaining all payments hereunder and pursuing all other remedies available at law or in equity, to refuse or terminate Customer’s access to the Software and Services. The restrictions contained in this Section 4(b) shall expressly survive the termination or expiration of this Agreement.
a. Implementation & Training Services. HWS will provide up to twenty (20) hours of implementation and training services for Customer and Customer’s Authorized Users. Implementation services include integrating Participating Patients’ information into the Software and developing a dedicated tracking system to allow Customer and its Authorized Users to monitor Participating Patients. Training services shall include virtual communication with Customer and their Authorized Users to educate them on use of the Software and related obligations and services. Additional training hours can be arranged at a rate of $100 USD/hour for in-person training and $50 USD/hour for remote training.
b. Support Services. HWS will provide technical and/or customer support services to customers (including
Participating Patients, physicians, and staff) via telephone and internet, and by internet 24 hours a day, seven days a week excluding Federal holidays (“Support Hours”). Customers may initiate a Customer Support ticket during Support Hours by contacting ITSupport@healthwealthsafe.com. HWS will use commercially reasonable efforts to respond to all Customer Support tickets within five (5) business days, but HWS does not represent, warrant, or guarantee that all tickets will be responded to within such a time frame.
a. Operations & Enrollment. Customer is responsible for identifying Participating Patients and referring the Participating Patients through the portal for the appropriate Services. Customer is responsible for providing sufficient information to HWS to allow HWS to furnish the Services to Participating Patients, including the patient’s name, contact information, and treatment information. b. Determining the Care Plan. Customer is responsible for determining a Participating Patient’s care plan and referring the Participating Patient through the portal, as well as determining the appropriate regimen for Participating Patients to follow. c. System. Except as specifically outlined in this Agreement, Customer is responsible for (a) obtaining, deploying, and maintaining all hardware, software, and equipment necessary for Customer and its Authorized Users to access and use the Services; (b) contracting with third-party ISP, telecommunications and other service providers as necessary to access and use the Services; and (c) paying all third-party fees and access charges incurred in connection with the foregoing. HWS will not be responsible for supplying any hardware, software, or other equipment to Customer under this Agreement and cannot be held responsible for any interruption in the Services that occurs due to any of the foregoing or Customer’s failure to maintain any of the foregoing. d. Consents. Unless otherwise agreed in writing, Customer is responsible for obtaining and maintaining all necessary consents and authorizations to enable HWS to use, upload, process, and store Customer Data and to provide the Services to Customers Participating Patients, including without limitation consent to receive notifications regarding a Participating Patient’s care from HWS on behalf of Customer. Customer represents and warrants that it will not furnish an individual’s PHI to HWS if the individual objects. Customer acknowledges and accepts full responsibility and liability for all Customer Data and for PHI that the Customer furnishes to HWS. e. TOU. Customer is responsible for its actions and the actions of its Authorized Users while using the Software. As a condition to Customer’s and its Authorized Users’ use of the Software, Customer shall require its Authorized Users to review and accept the HWS Provider-Facing TOU as updated by HWS from time to time, prior to accessing the Software. Customer shall abide by, and Customer shall ensure that its Authorized Users abide by, the TOU when using or accessing the Software. f. BAA. Customer must enter into a Business Associate Agreement (“BAA”) with HWS. The terms of the BAA between the Parties are incorporated into and made a part of this Agreement. g. Unenrollment of Participating Patients. Customer is responsible for determining when a Participating Patient is no longer eligible for or in need of the Services and notifying HWS that a Participating Patient is to be unenrolled by notifying the HWS care team by email at ITSupport@healthwealthsafe.com. If Customer fails to unenroll a patient after they are no longer in need of the Services, HWS may continue to provide Services to that Participating Patient, and Customer will continue to be obligated to pay HWS for the Services. h. Complying with Requests. Customer shall comply with all reasonable requests from HWS for information to ensure HWS can comply with its obligations under this Agreement. HWS shall not be responsible for any delay in Services or other negative impact resulting from Customer’s failure to comply with this Section 6(h). I. Claims Submission. Customer is solely responsible for verifying patient benefit eligibility and submitting claims for reimbursement to third-party payors, as applicable. Customer acknowledges and agrees that HWS is not a professional billing service and cannot be responsible for Customer’s failure to receive payment for the services it renders to patients using HWS’s Services or for improper claims Customer submits to third-party payors in association with the Services.
a. Fees. As compensation for the Services, Customer will pay HWS the Fees indicated on the Order Form. All
amounts outlined in this Agreement are denominated and shall be paid in U.S. dollars and are independent of reimbursement that Customer may or may not receive from third-party payors.
b. Invoicing & Payment Method. All payments will be debited by HWS by the Customer’s Payment Method indicated in the Order Form within five (5) business days of Customer’s receipt of invoice. Customer can update or change their payment method by contacting the HWS care team at ITSupport@healthwealthsafe.com.
c. Due Date. Unless otherwise indicated on the Order Form and/or properly disputed according to Section 7(c)(i) below, Customer will be provided with the invoice on the 30th or 31st of month (the last day of the month), and Customer’s invoiced amounts will be automatically debited via ACH deduction by HWS within five (5) business days of Customer’s receipt of an invoice.
1. Disputed Payments. If Customer wishes to dispute any fees or expenses, Customer must notify HWS in writing within ten (10) business days of receipt of payment specifying such fees or expenses (a “Dispute Notice”). The Dispute Notice must specify the amounts that are being disputed as well as the reason for such dispute. HWS and Customer agree to attempt to resolve such dispute through informal meetings and discussions in good faith between appropriate representatives of the Parties within forty-five (45) days of receipt of the Dispute Notice before resorting to any other dispute resolution procedure.
2. Overdue Payments. Any undisputed amount not timely paid to HWS (an “Overdue Payment”) may accrue, at HWS’s discretion, late charges at the rate of the lesser of eighteen percent (18%), or the maximum rate permitted by law, from the date such payment was due until the date paid. If there are undisputed payments outstanding for more than sixty (60) days from the due date, HWS reserves the right to suspend Customer and Customer’s Authorized Users’ access to the Software until such amounts are paid in full. Customer will continue to be obligated to pay all Fees during any such suspension period.
d. Taxes. All amounts payable to HWS under this Agreement are exclusive of all local, state, federal and foreign taxes, levies, or duties of any nature (“Taxes”), and all payments to HWS are payable in full without reduction for Taxes. Customer is responsible for payment of all Taxes, excluding taxes owed by HWS based on HWS’s net income. If HWS is legally obligated to pay or collect Taxes for which Customer is responsible, the appropriate amount will be invoiced to and paid by Customer unless Customer provides HWS with a valid tax exemption certificate authorized by the appropriate taxing authority.
a. HWS Intellectual Property. As between HWS and Customer, all right, title, and interest, including all Intellectual Property Rights, in the HWS Marks, Software, HWS Data, and any other HWS property or materials furnished or made available as part of the Services, and all modifications and enhancements of the same (“HWS Intellectual Property” or “HWS IP”), belong to and are retained solely by HWS or HWS’s licensors and providers, as applicable. Nothing in this Agreement is intended to or may be construed to transfer any such rights in any part of the Services to Customer other than as explicitly provided for in this Agreement. Customer shall not re-distribute the Software other than as specifically provided for in this Agreement.
b. Developments. Except as otherwise explicitly set forth in this Agreement, all inventions, works of authorship, and developments conceived, created, written, or generated by or on behalf of HWS, whether solely or jointly, in connection with the Services (“HWS Developments”) and all Intellectual Property Rights in the same, shall be the sole and exclusive property of HWS. Customer agrees to execute any documents or take any actions as may reasonably be necessary, or as HWS may reasonably request, to perfect HWS’s ownership of the HWS Developments.
c.Trademarks. Nothing in this Agreement shall grant either Party ownership interest, license, or other right to the other Party’s trade names, trademarks, or service marks, except as expressly provided in this Agreement.
d. Customer Data. As between HWS and Customer, all right, title, and interest in the Customer Data belong to and are retained solely by Customer.
1. HWS License. Customer grants to HWS a limited, non-exclusive, royalty-free, worldwide license to (i) use, reproduce, aggregate, and modify the Customer Data and to perform all acts with respect to the Customer Data as may be necessary for HWS to provide the Services to Customer; (ii) use or modify the Customer Data to create De-identified Data; and (iii) use Customer’s name, logo, and trademark for marketing purposes upon written consent of Customer. HWS intends to use De-identified Data, aggregated with the de-identified data of other HWS customers, to enable HWS to provide more targeted, accurate, and useful insights to its customers.
2. Accuracy of Customer Data. As between HWS and Customer, Customer is solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data. Customer Data will be included in and treated as Customer’s Confidential Information under this Agreement.
e. Feedback License. HWS owns all right, title, and interest in and to any suggestion, enhancement, request, recommendation, or other feedback related to the Software provided by Customer (any “Feedback”). Feedback is not Customer’s Confidential Information.
f. De-identified Data. HWS may use, create, modify, aggregate, and disclose De-identified Data for any purposes not prohibited by law. HWS owns all rights, title, and interest, and all Intellectual Property Rights in such De-identified Data and any data, information, and material created by HWS with such De-identified Data.
De-identified Data is NOT Customer Data and for this Section 8(f) does not include deidentified PHI which is governed by the BAA. For the avoidance of doubt, the second and third sentences of this Section 8(f) shall survive the expiration or earlier termination of this Agreement.
a. Confidential Information Defined. “Confidential Information” means any and all non-public technical and non-technical information disclosed by one Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) in any form or medium, that the Disclosing Party identifies as confidential or that by the nature of the circumstances surrounding the disclosure and/or receipt ought to be treated as confidential and proprietary information. Confidential Information includes, without limitation, (a) techniques, inventions (whether or not patented or patentable), know-how, processes, algorithms, software programs, software source and object codes and documents, APIs, and other creative works (whether or not copyrighted or copyrightable); (b) financial information, customer lists, business forecasts, and marketing plans and information; (c) the business relationships and affairs of either Party and its clients, patients, and referral sources; (d) the internal policies and procedures of either Party; (e) proprietary or confidential information of any third party who may disclose such information to Disclosing Party or Receiving Party in the course of Disclosing Party’s business; and (f) the terms of this Agreement. HWS’s Confidential Information further includes the Software and HWS Data.
Confidential Information of Customer also includes Customer Data. Confidential Information also includes all summaries and abstracts of Confidential Information. In addition, Confidential Information excludes PHI, which must be protected according to the BAA.
i. Exceptions. Confidential Information shall not include any information which, as evidenced by Receiving Party’s records: (i) was known by the Receiving Party prior to receipt from the Disclosing Party either itself or through receipt directly or indirectly from a source with no obligation of confidentiality to the Disclosing Party; (ii) was developed by the Receiving Party without use of the Disclosing Party’s Confidential Information, or (iii) becomes publicly known or otherwise ceases to be secret or confidential, except as a result of a breach of this Agreement or any obligation of confidentiality by the Receiving Party.
b. Confidential Information Terms. The Receiving Party will, at all times, both during the term and thereafter, keep in confidence and trust all of the Disclosing Party’s Confidential Information. The Receiving Party will not use the Disclosing Party’s Confidential Information other than as necessary to fulfill the Receiving Party’s obligations or to exercise the Receiving Party’s rights under this Agreement. Either Party may disclose the other Party’s Confidential Information upon the order of any competent court or government agency; provided that, prior to disclosure and to the extent possible, the receiving Party must (i) assert the confidential nature of the Confidential Information to the agency; (ii) immediately notify the Disclosing Party in writing of the order or request; and (iii) cooperate fully with the Disclosing Party in protecting against any such disclosure and/or narrowing the scope of the compelled disclosure. Each Party agrees to secure and protect the other Party’s Confidential Information with the same degree of care and in a manner consistent with the maintenance of such Party’s own Confidential Information (but in no event less than reasonable care). The Receiving Party will not disclose Confidential Information of the Disclosing Party to any person or entity other than its officers, employees, affiliates, and agents who need access to such Confidential Information in order to effect the intent of this Agreement and who are subject to confidentiality obligations at least as stringent as the obligations outlined in this Agreement.
c. Injunctive Relief. The Parties agree that any unauthorized disclosure of Confidential Information may cause immediate and irreparable injury to the Disclosing Party and that, in the event of such breach, the Receiving Party will be entitled, in addition to any other available remedies, to seek immediate injunctive and other equitable relief, without bond and without the necessity of showing actual monetary damage.
d. HIPAA Compliance. Each Party, to the extent applicable, will comply with laws and regulations applicable to the privacy and security of individually identifiable health information, including but not limited to state laws and regulations and the Health Insurance Portability and Accountability Act (“HIPAA”), the Health Information Technology for Economic and Clinical Health Act (“HITECH”), and/or regulations promulgated thereunder (“HIPAA Regulations”). The BAA further describes the Parties’ obligations with respect to compliance with HIPAA, HITECH, and HIPAA Regulations.
e. Security. Each of Customer’s Authorized Users will create a unique user login and password to be used to access and use the Software. Customer will be, and will ensure that its Authorized Users are, responsible for maintaining the confidentiality of all Authorized User logins and passwords and for ensuring that each login and password is used only by the Authorized User to which it was issued. Customer is responsible for ensuring that
its Authorized Users do not share passwords with each other or any third party. Customer agrees to immediately notify HWS of any unauthorized use of any account or login and password issued to an Authorized User, or any other breach of security known to Customer. HWS will have no liability for any loss or damage arising from Customer’s failure to comply with the terms outlined in this Section 9. Customer will ensure its Authorized Users do not circumvent or otherwise interfere with any user authentication or security of the Software
a. Without Cause. HWS may terminate this Agreement without cause upon sixty (60) days written notice to Customer.
b. Mutual Agreement. This Agreement shall terminate upon the mutual written agreement of Customer and HWS as of the date of signature or other effective date set forth on the written instrument
c. For Cause.
i. Material Breach. Either Party may terminate this Agreement following a material breach of this
Agreement by the other Party which is not cured during the Cure Period. The non-breaching Party shall notify the breaching Party of the breach in writing and the breaching Party shall have fifteen (15) days (the “Cure Period”) to cure the breach following receipt of the notification. If the breaching Party fails to cure the breach within the Cure Period, then the non-breaching Party may terminate this Agreement upon written notice to the breaching party.
ii. Other Cause. Either Party, as designated below, may terminate this Agreement immediately by providing written notice to the other Party upon the occurrence of any of the following events:
1. HWS may terminate if HWS reasonably determines that Customer and/or its Authorized User(s) have been or are engaged in unlawful activity associated with the use of the Software and/or the Services;
2. HWS may terminate if the Customer or its principals, employees, or agents are indicted or
convicted for any felony or misdemeanor involving moral turpitude;
3. Either Party may terminate if the other Party files a voluntary or involuntary petition in bankruptcy if such petition is not dismissed within thirty (30) days of such filing;
4. Either Party may terminate upon the appointment of a receiver or trustee to take possession of all, or substantially all, of the other Party’s assets, if such appointment is not terminated within thirty (30) days; and/or
5. HWS reserves the right to terminate for any other reason HWS feels could reasonably jeopardize the integrity or reputation of its operations or systems.
d. Effect of Termination. Unless otherwise stated below, upon expiration or termination of this Agreement for any reason, (a) the License shall terminate and the Customer and the Customer’s Authorized Users shall not use or access, directly or indirectly, the Software; (b) HWS’s obligation to perform support services shall cease; and (c) all fees and other amounts owed to HWS accrued prior to expiration or termination will be immediately due and payable. Further, if Customer has made any copies of any HWS property or materials furnished or made available under this Agreement, Customer shall, within thirty (30) days of the effective date of the expiration or termination, either destroy or return to HWS all such copies along with a certificate signed by Customer that all such copies have been either destroyed or returned, respectively, and that no copy or any part of the Software,
data, or other materials has been retained by Customer in any form.
i. Return of Customer Data. Within thirty (30) days after the effective date of applicable termination or expiration, HWS will make any Customer Data stored on the Software available upon written request to Customer.
ii. Device Consignment Terms. Pursuant to Section 4(c) of the Device Terms & Conditions, the Customer may be liable for all or part of the retail value of Device(s) ordered.
a. Mutual Representations and Warranties. Each Party represents, warrants, and covenants that: (a) to its
knowledge, it has the full power and authority to enter into this Agreement and to perform its obligations under
this Agreement, without the need for any consents, approvals, or immunities not yet obtained; (b) its
acceptance of and performance under this Agreement will not breach any oral or written agreement with any
third party or any obligation it owes to any third party; and (c) it will comply with any and all applicable local,
state, and/or national laws or regulations applicable to such Party, including, without limitation, those related to
PHI, Covered Entities, and Business Associates as each term is defined under HIPAA, and to any other laws or
regulations regarding data privacy and transmission of personal data.
b. Practice of Medicine. CUSTOMER HEREBY AGREES AND ACKNOWLEDGES THAT HWS IS IN NO WAY ACTING AS A MEDICAL PROVIDER, NOR IS HWS PROVIDING 24/7 CONTINUOUS, SYNCHRONOUS, OR EMERGENCY MONITORING OR ALERTING. CUSTOMER FURTHER ACKNOWLEDGES AND AGREES THAT ANY INFORMATION, PROCESSES, PRODUCTS, AND OTHER ITEMS REFERENCED BY HWS OR ITS SOFTWARE ARE NOT INTENDED AS A RECOMMENDATION OR ENDORSEMENT OF THAT INFORMATION, PROCESS, PRODUCT, OR OTHER ITEM AND THAT THE ULTIMATE RESPONSIBILITY FOR DIAGNOSING AND TREATING ANY PATIENT RESTS WITH CUSTOMER AND/OR ITS HEALTHCARE PROVIDER(S) TREATING SUCH PATIENT. FURTHER, THE HWS SERVICES CAN NOT AND ARE NOT DESIGNED, INTENDED, OR APPROPRIATE TO REPLACE THE RELATIONSHIP BETWEEN HEALTHCARE PROFESSIONALS AND USER OR TO ADDRESS SERIOUS, EMERGENT, OR LIFE-THREATENING MEDICAL CONDITIONS AND SHOULD NOT BE USED IN THOSE CIRCUMSTANCES. HWS IS NOT LIABLE TO ANY USER OR PERSON FOR ANY HARM CAUSED BY THE NEGLIGENCE OR MISCONDUCT OF ANY HEALTHCARE PROFESSIONALS OR CLINICIANS/CAREGIVERS, WHETHER OR NOT RELYING UPON INFORMATION COLLECTED, GENERATED, OR STORED VIA THE HWS SERVICES.
c. Third-Party Materials. CUSTOMER UNDERSTANDS AND AGREES THAT USING, ACCESSING, DOWNLOADING, OR OTHERWISE OBTAINING INFORMATION, MATERIALS, OR DATA THROUGH THE SOFTWARE FROM A SOURCE OTHER THAN HWS (“Third-Party Materials”) IS AT ITS OWN DISCRETION AND RISK AND THAT CUSTOMER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO ITS OR ITS AUTHORIZED USERS’ PROPERTY OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF SUCH MATERIAL OR DATA.
d. Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES OUTLINED IN THIS SECTION 11, THE SERVICES, SUPPORT,DOCUMENTATION, AND ANY OTHER SERVICES, DATA, AND CONTENT (INCLUSIVE OF THIRD-PARTY SERVICES AND ANY AND ALL THIRD-PARTY ITEMS, PRODUCTS, DEVICES, AND/ OR MATERIALS) ARE PROVIDED ON AN AS-IS BASIS. CUSTOMER’S USE OF THE SOFTWARE AND PURCHASE OF THE SERVICES ARE AT THEIR OWN RISK.HWS DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS, STATUTORY, AND IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND ACCURACY (OF DATA OR ANY OTHER INFORMATION OR CONTENT), AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING USAGE, OR TRADE PRACTICE. ANY WARRANTIES MADE BY HWS ARE FOR THE BENEFIT OF CUSTOMER ONLY AND NOT FOR THE BENEFIT OF ANY THIRD PARTY. THE SOFTWARE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS, SUCH AS DELAYS CAUSED BY THIRD-PARTY NETWORK PROVIDERS, THAT ARE OUTSIDE HWS’S CONTROL. HWS IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS. THE ENTIRE RISK ARISING OUT OF USE OR PERFORMANCE OF THE SOFTWARE, INCLUDING WITHOUT LIMITATION ANY INFORMATION, DATA, PRODUCTS, PROCESSES, AND OTHER MATTERS REFERENCED BY THE SERVICES REMAINS WITH THE CUSTOMER.EXCEPT AS EXPRESSLY PROVIDED HEREIN, HWS DOES NOT GUARANTEE CONTINUOUS, ERROR-FREE,VIRUS-FREE, OR SECURE OPERATION AND ACCESS TO THE SOFTWARE.
e. Basis of the Bargain. CUSTOMER ACKNOWLEDGES AND AGREES THAT HWS HAS OFFERED ITS SERVICES AND ENTERED INTO THIS AGREEMENT TO WHICH IT IS A PARTY IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN CUSTOMER AND HWS, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN CUSTOMER AND HWS. CUSTOMER ACKNOWLEDGES AND AGREES THAT HWS WOULD NOT BE ABLE TO PROVIDE THE SERVICES TO CUSTOMER ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.
a. Insurance. During the Term, Customer and HWS shall each maintain, at its own expense, maintain commercially reasonable insurance coverage in accordance with applicable industry standards and state and federal laws, rules, and regulations. Including Commercial General Liability insurance with limits of One Million Dollars
($1,000,000) per occurrence and Three Million Dollars ($3,000,000) in aggregate.
b. Indemnification by Customer. Customer shall indemnify and hold harmless HWS and its officers, directors, employees and agents (“HWS Indemnified Parties”), from and against any and all damages, liabilities, penalties, interest, fines, losses, costs and expenses (including reasonable attorneys’ fees and expenses) (“Losses”), arising, directly or indirectly, out of or relating to any claim, action or proceeding (a “Claim”) brought by a third party based on (i) the improper use or operation of the Services (and any third-party software provided to Customer pursuant to this Agreement) by Participating Patients, Customer and/or Authorized Users, including, without limitation, any non-authorized use of Customer’s user logins, except to the extent that any such Loss was due to the gross negligence or willful misconduct of HWS; (ii) a breach of the Agreement and/or the TOU by Customer or any of its Authorized Users, (iii) the accuracy, quality, integrity, legality, reliability or appropriateness of Customer Data or any other content or data introduced to any part of the Services by any Authorized User; (iv) violation of any applicable law, rule or regulation by Customer or any of the Authorized Users, (v) the diagnosis and/or treatment of any of Customer’s patients; and/or (vi) the negligent acts or willful misconduct of Customer or its personnel. Customer will pay all Losses (whether by settlement or award of by a final judicial judgment) incurred by the HWS Indemnified Parties from any such Claim.
c. Indemnification by HWS. Subject to limitations of liability outlined in this Agreement, HWS agrees to defend Customer and its officers, directors, employees, and agents (a “Customer Indemnified Party”) from and against any Losses resulting from or arising out of a successful claim that the Software infringes or misappropriates the patent, trade secret, trademark, copyright, or other Intellectual Property Rights of any third party (an “Infringement Claim”). HWS will pay all Losses (whether by settlement or award by a final judicial judgment) incurred by the Customer Indemnified Parties from any such Claim. In the event of an Infringement Claim, HWS may, at its election, and sole expense, (i) modify the Software so that such Software is non-infringing and functionally equivalent; or (ii) obtain the right for Customer and Customer’s patients to continue using the Software at no additional cost to Customer. If none of the foregoing is commercially practicable, HWS may immediately terminate this Agreement upon reasonable notice to Customer. Customer acknowledges and agrees that the remedies outlined in this paragraph 12(c) constitute Customer’s only available remedies and HWS’s only obligation with respect to an Infringement Claim.
d. Procedure. Each Party shall provide to the other Party prompt notice of any Claim for which they are seeking indemnification. The indemnified Party may have counsel reasonably acceptable to the indemnifying Party observe the proceedings at the indemnified Party’s expense, provided the indemnifying Party retains sole control of the defense of the Claim. The indemnified Party has the right to approve any settlement that affirmatively places on the indemnified Party an obligation that has a material adverse effect on the indemnified Party other than requiring the indemnified Party to cease using all or a portion of the Services or to pay sums eligible for indemnification under this Agreement. Such approval shall not be unreasonably withheld.
a. No Consequential Damages. NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL,CONSEQUENTIAL, OR PUNITIVE DAMAGES, OR ANY DAMAGES FOR LOST DATA, BUSINESS INTERRUPTION, LOST PROFITS, LOST REVENUE, OR LOST BUSINESS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY SUCH DAMAGES ARISING OUT OF HWS’S PROVISION OR CUSTOMER’S USE OF THE SOFTWARE OR THE RESULTS THEREOF, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL HWS BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES.
b. Limits on Liability. IN NO CASE WILL EITHER PARTY BE LIABLE FOR ANY AGGREGATE AMOUNT GREATER THAN THE AMOUNTS PAID AND PAYABLE BY CUSTOMER TO HWS UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE ON WHICH THE CLAIM FIRST ACCRUED, WITHOUT REGARD TO WHETHER SUCH CLAIM IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE.
c. Essential Purpose. CUSTOMER ACKNOWLEDGES THAT THE TERMS IN THIS SECTION 13 (LIMITATION OF LIABILITY) ARE A BARGAINED FOR REASONABLE ALLOCATION OF THE RISK BETWEEN THE PARTIES AND WILL APPLY (A) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND (B) EVEN IF AN EXCLUSIVE OR LIMITED REMEDY STATED HEREIN FAILS OF ITS ESSENTIAL PURPOSE.
d. Exceptions. The limitations and exclusions of certain damages outlined in Sections 13(a) and 13(b) will not apply to injury or damage caused by a Party’s gross negligence or willful misconduct.
e. Limitation of Action. No action (regardless of form) arising out of this Agreement may be commenced by Customer against HWS more than two (2) years after the cause of action arose.
a. Subcontractors. HWS may use its affiliates or subcontractors to perform its obligations under this Agreement.
b. Notice. Any notices, requests, consents, demands, or other communications required or permitted under this Agreement will be in writing and deemed to have been duly given either: (a) when delivered, if delivered by hand, sent by United States registered or certified mail (return receipt requested), delivered personally by commercial courier, or sent by email; or (b) on the second following business day, if sent by United States Express Mail or a nationally recognized commercial overnight courier; and in each case to the Parties at the following addresses (or at other addresses as specified by a notice) with applicable postage or delivery charges prepaid. Notices to HWS shall be sent to the following address: ATTN: Dawn.Dobbs@healthwealthsafe.com Health Wealth Safe, Inc., 2005 Prince Avenue, Athens, Georgia 30606. Notices to Customer shall be sent to the address specified in the Order Form.
c. Amendment. Except as may otherwise be specified in this Agreement, this Agreement may be modified, changed, or amended only by a written amendment mutually agreed to and signed by both Parties.
d. Waiver; Severability. A Party’s right to enforce a provision of this Agreement may only be waived in writing and signed by the Party against which the waiver is to be enforced. Failure to enforce any provision of this Agreement in any one instance will not be construed as a waiver of future performance of that provision, and the Party’s obligations under that provision will continue in full force and effect. The provisions of this Agreement are severable. The invalidity or unenforceability of any term or provision in any jurisdiction will be construed and enforced as if it has been narrowly drawn so as not to be invalid, illegal, or unenforceable to the extent possible and will in no way affect the validity or enforceability of any other terms or provisions in that jurisdiction or of this entire Agreement in that jurisdiction.
e. Governing Law & Venue. This Agreement, any additional applicable Terms & Conditions, and each Party’s rights and obligations under each will be governed by and construed in accordance with the laws of the State of Delaware without giving effect to conflicts of law principles. Each Party hereby submits to the jurisdiction of any court in the State of Delaware.
f. Assignment. Neither Party may assign or transfer this Agreement or any additional applicable terms and conditions without the prior written consent of the other Party; provided, however, that HWS may assign or transfer this Agreement without Customer’s consent to any of HWS’s affiliates, subsidiaries, entities controlled by or under common control with HWS, or in the event of a merger, change of control or sale of substantially all of its assets. This Agreement will bind the Parties and their respective successors and permitted assigns and will inure to the benefit of the Parties and their respective permitted successors and assigns.
g. Force Majeure. If any Party is unable to perform any of its obligations under this Agreement (with the exception of payment obligations) because of any cause beyond the reasonable control of and not the fault of the Party invoking this Section 14(g), including any act of God, fire, casualty, flood, earthquake, war, strike, lockout, epidemic or pandemic, destruction of production facilities, riot, insurrection or material unavailability, and if the non-performing Party has been unable to avoid or overcome its effects through the exercise of commercially reasonable efforts, such non-performing Party will give prompt notice to the other Party, its performance will be excused, and the time for its performance will be extended for the period of delay or inability to perform due to such occurrences. If performance is extended under this Section 14(g) for more than sixty (60) days, then at any time before reinstatement of the performance, the other Party may terminate this Agreement upon notice to the non-performing Party.
h. Relationship of the Parties. The sole relationship between the Parties is solely that of independent contractors. This Agreement will not create a joint venture, partnership, agency, employment, or other relationship between the Parties.
i. Survival. Any term of this Agreement that contemplates performance after termination of this Agreement will survive expiration or termination and continue until fully satisfied.
j. Dispute Resolution. In case of disputes in connection with the negotiation, execution, interpretation, performance, or non-performance of this Agreement, the Parties agree to seek non-binding mediation, which shall be conducted remotely by a single mediator selected by the Parties. If the Parties fail to agree on the mediator within thirty (30) days of the date one of them invokes this provision, either Party may apply to the American Arbitration Association to make the appointment. The mediator shall conduct the proceedings pursuant to the rules of the American Arbitration Association, as they exist at the time of the dispute. In the event that any such mediation does not produce a settlement unless the dispute is otherwise settled, the dispute shall be determined by binding and final arbitration in Delaware by three (3) arbitrators selected by the Parties (or by the American Arbitration Association if the Parties cannot agree) in accordance with the law of Delaware and the rules of the American Arbitration Association.
k. Entire Agreement. This Agreement, including all applicable Attachments, constitutes the entire agreement between the Parties relating to this subject matter and supersedes all prior or simultaneous understandings, representations, discussions, negotiations, and agreements, whether written or oral.
l. Counterparts. This Agreement may be executed in one or more counterparts. Each counterpart will be an original, but all such counterparts will constitute a single instrument.